Police v Nauer [2023] WSSC 55 (24 August 2023)

IN THE SUPREME COURT OF SAMOA
Police v Nauer [2023] WSSC 55 (24 August 2023)

Case name:	Police v Nauer
Citation:	[2023] WSSC 55
Decision date:	24 August 2023
Parties:	POLICE (Prosecution) v RUDOLF NAUER, male of Lotopa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 2 years and 8 months’ imprisonment, less time in custody. The defendant’s current driver’s license pursuant to s39A(3)(b) is revoked and he is disqualified from obtaining a driving licence for a period of 3 years.
Representation:	I. Atoa for Prosecution C. Vaai for the defendant
Catchwords:	Negligent driving causing death - brakes failed - first offender – custodial sentence
Words and phrases:	“Defendant had no license to operate truck” – “unlicensed truck” – “ifoga carried out” – “substantial monetary assistance from defendant’s family towards funeral costs”
Legislation cited:	Crimes Act 2013, ss. 88, 92(2)(b); 102; 108; Road Traffic Ordinance 1960, ss. 7; 27(1); 39A(1); 39A(2); 39A(3); 72A(2)
Cases cited:	Seuoti v Police [2006] WSSC 48; Tauai v Police [2002] WSSC 5.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

RUDOLF NAUER, male of Lotopa

Defendant

Counsel: I. Atoa for Prosecution
C. Vaai for the defendant

Sentence: 24 August 2023

SENTENCING OF TUATAGALOA J

Background

1. This has been a long outstanding matter. The defendant, Rudolf Nauer, on 23 March 2021 was originally charged with the following charges: motor vehicle manslaughter (x1)^[1], negligent driving causing injury(x1)^[2], being an unlicensed driver,^[3] and driving an unlicensed vehicle.^[4]
2. On 26 April 2021 Prosecution withdrew the motor manslaughter charge and replaced it with negligent driving causing death pursuant to section 39A(3) of the Road Traffic Ordinance 1960. On 24 May 2021 the defendant pleaded guilty to all four (4) charges and the matter was adjourned for sentencing on 15 October 2021. However, Prosecution again refiled the motor manslaughter charge in place of the negligent driving causing death and the defendant through Counsel entered a not guilty plea. This resulted in sentencing not taking place as scheduled on 15 October 2021.
3. It seems that several things transpired between 26 April 2021 and 24 July 2023 resulting in the Prosecution again withdrawing the motor manslaughter charge and replacing it with negligent driving causing death and at the same time also withdrew the other three (3) charges of negligent driving causing injury, unlicensed driver and unlicensed vehicle resulting in the defendant pleading ‘guilty’ to the refiled charge of negligent driving causing death.

Charge

4. The defendant, Rudolf Nauer, appears today for sentencing after having pleaded guilty on 24 July 2023 to the charge of negligent driving causing death pursuant to section 39A(1) & (3) of the Road Traffic Ordinance (“the Ordinance”) 1960 with a maximum penalty of 10 years’ imprisonment or a fine of $25,000 maximum.
5. The penalty for the offence of negligent driving causing death was amended in March 2021 increasing the maximum penalty from 7 years to 10 years’ maximum imprisonment placing it in the jurisdiction of the Supreme Court.

The Offending

6. The summary of facts provided by Prosecution has been read out and confirmed by the defendant which says:
   • (i) Prior to the incident, the defendant was driving a 10 wheeler heavy duty truck with a 11.5 ton excavator on board transporting it from Malololelei to Tulaele;
   • (ii) While driving downhill with the excavator on board, the truck picked up speed. The defendant applied the brakes to try and control the truck but the brakes were said to have failed. According to the summary of facts, the truck swerved across both sides of the road fast approaching a bend at high speed.
   • (iii) At the time, the 14 year old deceased was standing with other people in front of a food market stand located just after the bend. At such short notice, having just come around the bend, the others who were near the market stand were able to quickly run away seeing the truck was out of control.
   • (iv) Unfortunately, the 14 year old deceased was closest to the side the truck was approaching from and did not manage to escape. The deceased was hit by the tow truck and was dragged underneath the truck when the truck with the excavator in tow drove straight through the food market stand. The tow truck came to a halt when it smashed into a rock fence behind the food market stand.
   • (v) The 14 year old boy was taken to hospital and was formally pronounced dead on arrival.
   • (vi) The truck did not have a warrant of fitness and registration to lawfully be on the road.
   • (vii) The defendant also did not have a driver’s licence to operate Class F Heavy Duty Vehicle only a licence to drive private motor vehicles (Class B).

The Injuries

7. The 14 year old deceased was said to have died from traumatic head injury with brain tissue completely dislodged and multiple open fractures of long bone and spinal fractures.
8. The photographs taken at the scene of the deceased shows the 14 year old with the back of his head completely severed leaving a big gaping hole. His entire body due to the multiple fractures looked disfigured.

Victim Impact Report (“VIR”)

9. It is evident from the VIR the pain experienced by the parents of the 14 year old deceased. The father says that they can forgive but they can never forget their son and nothing can bring him back. The pain of losing a child is devastating.
10. The father confirms a traditional apology or ifoga was carried out by the defendant’s family and received a substantial monetary assistance ($18,000) that was put towards the funeral costs together with fine mats, bricks, cement and sand for the grave.

The Defendant

11. The defendant according to the summary of facts and pre-sentence report (“PSR") was a 24 year old father of two at the time of offending from the villages of Lotopa and Falelauniu. He is employed at his father’s business, “Rudy Nauer Machineries”. The father says in his son’s PSR that the defendant is his right hand in running their business.
12. In the pre-sentence report the defendant says at the time the brakes failed, there were two vehicles ahead of him and one of these was a van with school children, all he could do at the time was to try avoid hitting the vehicles ahead of him by swerving but the truck was gaining momentum on the way down. Driving around the bend, he drove straight towards the rock fence, a decision he made to try and stopped the truck.
13. The defendant was also injured and was admitted to hospital for treatment.
14. There are written testimonials from the defendant’s religious Bishop and father. Both attested to the defendant’s good character and positive traits. The defendant’s wife speaks of him being a good father, husband and provider to their young family.

Prosecution’s submissions

15. The Prosecution in their original submissions recommended a custodial sentence with a starting point of two (2) years; this they later amended to a starting point of four (4) years having considered aggravating and mitigating factors as follows:
    • (a) Aggravating factors.
      • (i) Serious injuries sustained by the deceased which led to his death. It was a gruesome death after having viewed the injuries sustained taken at the scene. There was no hope of the deceased surviving the injuries;
      • (ii) Degree of negligence is to the high end of the scale. The truck in the first place did not have a warrant of fitness and should never have been on the road;
      • (iii) No qualification to operate a Class G motor vehicle. The vehicle is a heavy duty 10 wheeler truck that only those who are experienced and qualified to drive it are being granted with such licenses to drive;
    • (b) Mitigating factors.
      • (i) The Defendant has no previous convictions and is a first offender;
      • (ii) The traditional apology by the defendant’s family to the family of the young deceased;
      • (iii) The contribution by the defendant and his family towards the young deceased’s family consisted of cash and materials for the deceased’s grave confirmed to amount to $18,000.⁰⁰;
      • (iv) The defendant’s guilty plea.

Defence Counsel’s Submissions

16. Counsel for the defendant accepts the indication by the Court of a custodial sentence and seeks the Court’s indulgence to take into consideration the following:
    • (a) The Defendant’s personal circumstances of a young family and his young age;
    • (b) The defensive actions said to have been taken by the defendant swerving the truck from side to side to avoid crashing in to a vehicle with children in the front and when he drove the vehicle in to the rock fence;
    • (c) The written testimonial by the by his Church Bishop of being a committed family man, respectful and religious;
    • (d) His family has performed a traditional ifoga and have contributed $20,000 to the deceased’s funeral; and
    • (e) That he has pleaded guilty showing remorse and accountability for his actions.
17. Counsel submits that the negligence and the actions of the defendant falls within the range between the case of Police v Sape (no citation provided and therefore not considered by the Court) and Seuoti v Police [2006] WSSC 48 (1 September 2006) where Counsel submits that a mid-range between 12 months’ imprisonment and non-custodial is appropriate. Counsel submits that 6 months’ imprisonment is an appropriate sentence to impose.

Discussion

18. The increase in the penalty from 7 years to 10 years for negligent driving causing death is a clear indication of Parliament’s intention to stamp out the increasing number of fatalities due to negligent driving by drivers without any regard for the safety of other road users.
19. The golden rule of sentencing (referred to by Counsel for the defendant in his submissions) is that each defendant is sentenced according to the particular circumstances of his or her offending. That consistency in sentencing approach does not mean the same thing as consistency in results.^[5]
20. The approach to sentencing of negligent driving causing death or injury has been identified in Seuoti v Police [2006] WSSC 48 (1 September 2006) of two broad categories:
    • (i) Accidents caused by momentary inattention or error of judgment. This would be at the lower end of the scale and would attract non-custodial sentences; and
    • (ii) Accidents caused by driving in a manner which shows a selfish disregard of other road users or of passengers. This would be at the high end of the scale and would attract custodial sentences.
21. The Court will not accept that the blame be put solely on the fact that the truck’s brakes failed while on its way down from Vailima. The tow truck according to the Defendant’s company mechanic, Viliamu Joe Mamea in a statement made to the Police^[6] said he checked the whole truck and it was in good running condition – “Ou te tā’ua sa ou siakiina le afi, suauu, fuluki, vai, fua o ea o taofi, pa’u, taofilima, kia, kalasi, tino o le loli ma paipa o le ea ina ia mautinoa o loo lelei atoatoa vaega uma o le taavale. Ou te molimau atu o le maea o la’u siakiina o le loli sa ou mautinoa lelei lava o loo lelei atoaatoa vaega uma o le taavale.” Counsel for the defendant in his submissions put forward that the defendant said that the truck’s brakes failed when they came down from Vailima and this contradicts what the mechanic said in his statement. The same company mechanic inspected the truck after the accident and noted the following:
    • “Ou te molimauina o le taimi sa ou toe taamilo ai e toe siaki le loli sa ou maua ai le paipa taua e faasoaina le ea mo taofi o le loli ua pa (ta’e). Ou te taua o le mafuaaga tonu lava lea na mafua ai ona tula’i le faalavelave ona ua pa le paipa lea o le ea mo taofi ole loli...”
22. What the company’s mechanic observed in his inspection of the truck after the accident is explained by a mechanic inspection of the truck referred to by the prosecution in their summary of facts at paragraph [18] as follows:
    • “At this point with the truck driving downhill with a heavy load trailer on the defective clutch, gearshift are hardly engaged using engine torque to assist with brakes to slow down the truck, which therefore placed too much overheating load on its brakes and causes mechanical explosion failure on its brakes as well as the trailer.”
23. The defendant’s father in a statement made to the Police^[7] confirms that the truck was unlicensed and as such the truck should never have been on the road in the first place regardless if it was roadworthy. The defendant who works for his father assisting in the daily operations of their company would or should have known that the truck was not licensed and that he did not have the appropriate or valid driver’s license to operate such a vehicle.
24. Although the charges of driving an unlicensed vehicle and driving without the appropriate driver’s license to operate heavy duty vehicles have been withdrawn, they remain facts towards the charge of negligent driving causing death. The defendant’s negligence is (i) when he drove the 10 wheeler heavy duty truck without a warrant of fitness or registration to be on the road; (ii) when he drove it without the appropriate driver’s licence to allow him under the law to operate such heavy duty vehicles; and (iii) the defendant was transporting on board the truck a 11.5 ton excavator; and (iv) the defendant came off a bend and drove straight at the rock fence without a clear view of whether there were people at that part of the road. He said in his PSR that he knew of the rock fence and he aimed at the rock fence when he comes off the bend to stop his vehicle. The defendant managed to but at the expense of a life. The 14 year old deceased was nearest to where the truck was coming from did not have time to escape.
25. I agree to the aggravating and mitigating factors provided by the Prosecution and Counsel for the defendant. I do not agree with the starting point of four years for a custodial sentence recommended by the Prosecution nor do I agree with the six months’ recommended by Counsel for the defendant as end sentence. I acknowledge the defendant’s defensive actions he said to have taken of swerving to avoid crashing into other motorists that were in front of the truck while coming down hill with failed brakes thus saving those other lives. I also acknowledge that driving into the rock fence may have also saved more lives than if the truck had continued on going downhill.
26. The circumstances of this offending and the presence of factors taken by the Court to be aggravating puts the offending in the second category identified in Seuoti v Police (supra). I find the culpability level of the defendant to be in the mid to high range. I consider as appropriate a starting point of 5 years’ imprisonment and make the following deductions:
    • (a) 18 months for first offender status, personal circumstances, traditional apology and funeral contribution;
    • (b) 6 months for the defensive actions taken by the defendant. This leaves 36 months (3 years);
    • (c) 10% discount for the guilty plea of 4 months. This leaves 32 months (2 years and 8 months).
27. The end sentence for the offence of negligent driving causing death is 2 years’ and 8 months.

Sentences Imposed

28. The defendant is convicted and sentenced to 2 years and 8 months’ imprisonment, less time in custody.
29. The defendant’s current driver’s license pursuant to s39A(3)(b) is revoked and he is disqualified from obtaining a driving licence for a period of 3 years.
    

JUSTICE TUATAGALOA

ADDENDUM:

Amendments incorporated into paragraphs [15] & [25] reflecting on the recommended starting point by Prosecution in their amended sentencing memorandum that the Court received late. The amendments are not reflected in the written sentencing decision initially given to counsel after the sentencing was imposed. It also did not change the end sentence.

---

^[1] Crimes Act 2013, ss88,92(2)(b),102 & 108
^[2] Road Traffic Ordinance, s39A(1)& (2)
^[3] Road Traffic Ordinance 1960, s27(1) & s72A(2)
^[4] Road Traffic Ordinance 1960, s7 and section 72A(2)
^[5] Tauai v Police [2002] WSSC 5 (8 March 2002)
^[6] Statement by Viliamu Joe Mamea dated 17 March 2021 at 12.03pm
^[7] Statement by Rudolf Nauer (senior) dated 20 March 2021 at 1pm.